United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE
Plaintiff Russell Harris filed a complaint against Defendants
Arizona Board of Regents, Arizona State University
(“ASU”), Lilly Perez-Freerks, Tamara Rounds, and
Michelle Carney, alleging violations of the Americans with
Disabilities Act (“ADA”). Docs. 26, 35. The
individual Defendants are sued in their official capacities.
Defendants have filed a motion to dismiss (Doc. 38), and
Plaintiff has filed various motions (Docs. 55, 57, 58, 61,
65). The motion to dismiss is fully briefed, and the Court
concludes that oral argument is not necessary. For the
reasons set forth below, the Court will grant Defendants'
motion to dismiss and deny Plaintiff's motions.
was enrolled in the ASU Masters of Social Work
(“MSW”) program. He was terminated from the
program for allegedly unprofessional behavior. Plaintiff
argues that Defendants did not accommodate his disability, as
required by the ADA, and then retaliated against him when he
sought - and complained about not receiving - reasonable
accommodation. Docs. 26, 35. He alleges that he was
ultimately dismissed from the MSW program because of his
sought review of his termination from the MSW program under
Arizona's Administrative Review Act (“ARA”),
A.R.S. § 12-901 et seq., in the Arizona
Superior Court on March 25, 2016. Doc. 23-1 at 27. The
defendants in that case brought a motion to dismiss, arguing
that academic termination decisions are not judicially
reviewable under the ARA. Doc. 23-1 at 5-6. Plaintiff filed a
response under seal. The Superior Court ultimately granted
the motion to dismiss, but did not explain its reasons. Doc.
23-2 at 5-6. Plaintiff appealed the dismissal to the Arizona
Court of Appeals (id. at 8-9), but abandoned that
appeal on August 29, 2016, before filing an opening brief
(id. at 11-15). Plaintiff then filed this claim on
November 21, 2016. Doc. 1.
Motion to Dismiss.
argue that Plaintiff's claims are barred by res judicata
- also referred to as claim preclusion - because they were or
could have been brought in his previous action before the
Superior Court. Doc.38 at 7.
is now settled that a federal court must give to a
state-court judgment the same preclusive effect as would be
given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); accord.
Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.
1990). In Arizona, “res judicata will preclude
a claim when a former judgment on the merits was rendered by
a court of competent jurisdiction and the matter now in issue
between the same parties was, or might have been, determined
in the former action.” Hall v. Lalli, 977 P.2d
776, 779 (Ariz. 1999); accord Blonder-Tongue Labs. v.
Univ. of Ill. Found., 402 U.S. 313, 323-24 (1971).
“To successfully assert the defense of claim
preclusion, a party must prove: (1) an identity of claims in
the suit in which a judgment was entered and the current
litigation, (2) a final judgment on the merits in the
previous litigation, and (3) identity or privity between
parties in the two suits.” Peterson v. Newton,
307 P.3d 1020, 1022 (Ariz.Ct.App. 2013) (quotation marks and
citation omitted). “Res judicata protects litigants
from the burden of relitigating an identical issue and
promotes judicial economy by preventing needless
litigation.” Hall, 977 P.2d at (quotation
marks and citation omitted).
Final Judgment on the Merits.
argues that the Superior Court's dismissal of his claim
was not a final judgment on the merits. Doc. 45 at 4. The
Superior Court granted the defendants' motion to dismiss
with prejudice, dismissing Plaintiff's cause of action in
its entirety and entering judgment. Doc. 23-2 at 5. Arizona
law is clear that dismissal with prejudice is a final
judgment on the merits. Torres v. Kennecott Copper
Corp., 488 P.2d 477, 479 (Ariz.Ct.App. 1971).
by way of res judicata or collateral estoppel, the preclusive
effect of a judgment is limited to parties and persons in
privity with parties.” Scottsdale Mem'l Health
Sys., Inc. v. Clark, 759 P.2d 607, 612 (Ariz. 1988). In
the Superior Court action, Plaintiff brought suit against the
Arizona Board of Regents, ASU, and four university employees
in their official capacities. Doc. 23-1; Doc. 53 at 7. In
this case, Plaintiff brings suit against the Arizona Board of
Regents, ASU, and three university employees in their
official capacities. Doc. 35; Doc. 53 at 7. Plaintiff argues
that the identity or privity of parties element is not
satisfied because one of the defendants from the state court
action, Mr. Wertheimer, is not a party to this action. But
Wertheimer's absence in this litigation does not defeat
the privity requirement, which is based on the principle that
“one is not bound by a judgment in personam in a
litigation in which he is not designated as a party or to
which he has not been made a party by service of
process.” Hansberry v. Lee, 311 U.S. 32, 40
(1940). Moreover, all of the university officials are sued in
their official capacities. “[A] suit against a state
official in his or her official capacity is not a suit
against the official but rather is a suit against the
official's office. As such, it is no different from a
suit against the State itself.” Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 (1989);
Carrillo v. State, 817 P.2d 493, 496 (Ariz.Ct.App.
1991) (“As long as the government entity receives
notice and an opportunity to respond, an official-capacity
suit is, in all respects other than name, to be treated as a
suit against the entity.”).
result, any discrepancy between the particular ASU employees
sued in their official capacities in the two actions will not
defeat privity, as ASU employees sued in their official
capacities will necessarily be in privity with one another
and with Defendant ASU. Privity between a party and a
non-party requires both a “substantial identity of
interests” and a “working or functional
relationship” in which the interests of the non-party
are presented and protected by the party in the litigation.
Hall, 977 P.2d at 779. ASU and the officially-sued
defendants in both cases have substantial identities of
interest and a working relationship in which their interests
align. The Court finds the privity requirement